Citation Nr: 18147840 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-06 830 DATE: November 6, 2018 ORDER New and material evidence not having been received, the claim for service connection for a lumbar spine disorder is not reopened. New and material evidence not having been received, the claim for service connection for post-traumatic stress disorder (PTSD) is not reopened. New and material evidence having been received, the claim for service connection for a psychiatric disorder is reopened. New and material evidence having been received, the claim for service connection for sleep apnea is reopened. Entitlement to service connection for a psychiatric disorder, to include depressive disorder as secondary to service-connected migraines and bilateral plantar fasciitis, is granted. Entitlement to service connection for sleep apnea, secondary to weight gain resulting from service-connected migraines and bilateral plantar fasciitis, is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for residuals of a sexually transmitted disease to include warts is remanded. FINDINGS OF FACT 1. In a July 2011 rating decision, the RO again denied the Veteran’s claim for entitlement to service connection for a lumbar spine disorder. The Veteran was notified of the decision, but he did not appeal that determination or submit new and material evidence within one year of such notification. 2. The evidence received since the July 2011 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disorder. 3. In a July 2011 rating decision, the RO again denied the Veteran’s claim for entitlement to service connection for PTSD. The Veteran was notified of the decision, but he did not appeal that determination or submit new and material evidence within one year of such notification. 4. The evidence received since the July 2011 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for PTSD. 5. In a July 2011 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a psychiatric disorder. The Veteran was notified of the decision, but he did not appeal that determination or submit new and material evidence within one year of such notification. 6. The evidence received since the July 2011 rating decision, by itself, or in conjunction with previously considered evidence, is neither cumulative nor redundant of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder. 7. The evidence of record shows the Veteran’s psychiatric disorder was caused or aggravated by the Veteran’s service-connected migraines and bilateral plantar fasciitis. 8. In a July 2011 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for sleep apnea. The Veteran was notified of the decision, but he did not appeal that determination or submit new and material evidence within one year of such notification. 9. The evidence received since the July 2011 rating decision, by itself, or in conjunction with previously considered evidence, is neither cumulative nor redundant of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 10. The evidence of record shows the Veteran’s sleep apnea developed secondary to weight gain that resulted from his service-connected migraines and bilateral plantar fasciitis. CONCLUSIONS OF LAW 1. The July 2011 rating decision, which denied service connection for a lumbar spine disorder and PTSD, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the July 2011 rating decision is not new and material, and the claims for service connection for a lumbar spine disorder and PTSD is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The July 2011 rating decision, which denied service connection for a psychiatric disorder and sleep apnea, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 4. The evidence received since the July 2011 rating decision is new and material, and the claim for service connection for a psychiatric disorder, to include depressive disorder as secondary to service-connected migraines and bilateral plantar fasciitis, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for an award of service connection for a psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 6. The evidence received since the July 2011 rating decision is new and material, and the claim for service connection for sleep apnea, secondary to weight gain resulting from the service-connected migraines and bilateral plantar fasciitis, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The criteria for establishing service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from October 1984 to October 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board notes that since the time of the decision, the Veteran has submitted new evidence along with a waiver of AOJ consideration. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material In general, rating decisions that are not timely appealed or for which new and material evidence is not received within one year of the rating decision are final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). See also Barnett v. Brown, 83 F.3d 1380 (Fed Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence has been submitted to reopen the claim for service connection before proceeding to adjudicate the underlying merits. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). A finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. at 118-19. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) (“Justus does not require the Secretary of VA to consider the patently incredible to be credible”). The Board acknowledges that additional service department records have been added to the record since the July 2011 rating decision. The Board has considered whether reconsideration of the claim of entitlement to service connection a lumbar spine disorder and PTSD is warranted under 38 C.F.R. § 3.156(c). However, for reconsideration, the additional service department records added to the record must be relevant in that they relate to the claimed in-service injury, event, or illness. The Board notes the additional service department records received are not relevant to the Veteran’s lumbar spine disorder or PTSD claim. The Board acknowledges the presence of an August 1984 report of medical examination is included in the records. The examination is duplicative of records noted in the Veteran’s service treatment records during the prior consideration of the RO. As such, the provisions of 38 C.F.R. § 3.156(c) are not applicable in this case and the claims are subject to the laws governing final decisions and new and material evidence. Lumbar Spine Disorder The RO considered and denied the Veteran’s claim for service connection for a lumbar spine disorder in a July 2011 rating decision. The Veteran was notified of the July 2011 rating decision; however, he did not submit a notice of disagreement. There was also no evidence received within one year of the issuance of the decision. Therefore, the July 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the July 2011 rating decision, the evidence of record included the Veteran’s service treatment records, VA treatment records, and a VA examination report and opinion. Ultimately, the RO found there was no evidence of record to connect the Veteran’s current lumbar spine disorder to his military service. The evidence received since the July 2011 rating decision includes service department records, social security disability records, and VA treatment records. The Veteran was previously denied service connection for his lumbar spine disorder as there was no evidence that his current disorder was related to his active service. While new evidence has been added to the record, it is not material. The evidence restates the fact that the Veteran has a current disorder. Therefore, the evidence added to the record does not raise a reasonable possibility of substantiating the claims. Missing is evidence that links the Veteran’s current disorder to his military service. Accordingly, because new and material evidence has not been submitted, reopening of the claim of entitlement to service connection for a lumbar spine disorder is not warranted. PTSD The RO considered and denied the Veteran’s claim for service connection for PTSD in a July 2011 rating decision. The Veteran was notified of the rating decision; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the July 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the July 2011 rating decision, the evidence of record included the Veteran’s service treatment records, VA treatment records, and a VA examination report and opinion. Ultimately, while the RO found the Veteran had a diagnosis of PTSD, there was no evidence of a verified, in-service stressor. The evidence received since the July 2011 rating decision includes service department records, social security disability records, VA treatment records, and VA examination and report. While new evidence has been submitted related to this claim, it is not material. The evidence merely indicates the Veteran has a PTSD diagnosis which is a fact the RO has already conceded. The evidence added to the record does not include a verified, in-service stressor. Thus, it does not raise a reasonable possibility of substantiating the claim. Accordingly, because new and material evidence has not been submitted, reopening of the claim of entitlement to service connection for PTSD is not warranted. Psychiatric Disorder, Depressive Disorder The RO initially considered and denied the Veteran’s claim for service connection for a psychiatric disorder in a July 2011 rating decision. The Veteran was notified of the July 2011 rating decision; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the July 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence received since the July 2011 rating decision includes a March 2015 private medical opinion which contains a nexus opinion, which is the evidence that was missing at the time of the July 2011 rating decision. Therefore, it is relevant and can to raise the likelihood of substantiating the Veteran’s claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previous psychiatric disorder claim. Further discussion of the merits of the claim will be discussed below. Sleep Apnea The RO initially considered and denied the Veteran’s claim for service connection for sleep apnea in a July 2011 rating decision. The Veteran was notified of the July 2011 rating decision; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the July 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the July 2011 rating decision, the evidence of record included the Veteran’s service treatment records and VA treatment records. Evidence received since the July 2011 rating decision includes an October 2016 private nexus opinion. The evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence has been presented for the Veteran’s previously denied claim for service connection for sleep apnea. Therefore, the claim is reopened. The merits of the claim will be addressed below. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310(b), and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). Psychiatric Disorder, Depressive Disorder Following review of additional evidence submitted by the Veteran, it appears he is seeking service connection for a psychiatric disorder secondary to his service-connected migraines and bilateral plantar fasciitis. In a March 2015 private medical examination, the examiner indicated it was more likely than not the Veteran’s psychiatric disorder (depressive disorder) began in service and was caused by or aggravated by his service-connected migraines and bilateral plantar fasciitis. The examiner noted the Veteran experienced symptoms of depressed mood, panic attacks, near continuous panic attacks or depression, impaired short-term memory, disturbances in mood, difficulty establishing relationships and persistent delusions and hallucinations. The examiner noted that medical literature detailed a connection between depressive disorder and anxiety symptomatology and headaches like the Veteran experiences. Further, the examiner attached several supporting medical articles to his opinion. The doctor indicated that he formed his opinion following a review of the Veteran’s claims file and upon examination. There are no other opinions of record that address the theory of entitlement based on secondary service connection. The Board notes the opinion acknowledges there is an association between the Veteran’s psychiatric disorder and his migraines and bilateral plantar fasciitis. Further, the physician supported his opinion with adequate rationale and medical literature. Therefore, the Board finds that entitlement to service connection for a psychiatric disorder secondary to service-connected migraines and bilateral plantar fasciitis is warranted.   Sleep Apnea The Veteran has claimed entitlement to service connection for a sleep disorder that was diagnosed as sleep apnea or sleep hyperventilation in May 2009. VA treatment records reveal the Veteran was prescribed a CPAP machine. Essentially, through review of the most recent evidence submitted by the Veteran, it appears he is seeking service connection for sleep apnea secondary to his service-connected migraines and bilateral plantar fasciitis. In an October 2016 private medical opinion, a physician opined that it was more likely than not the Veteran’s current sleep apnea was related to or aggravated by the Veteran’s weight gain, obesity, and decreased activity resulting from his bilateral plantar fasciitis and migraines. His opinion included a very lengthy discussion of pertinent medical literature and the facts of the Veteran’s specific case. Further, he noted he had examined the Veteran and reviewed his claims file and VA treatment records. There are no other opinions of record that address the secondary service connection theory. The Board notes the opinion acknowledges there is an association between weight gain and conditions such as the Veteran’s migraines and bilateral plantar fasciitis. Additionally, the opinion draws a relationship between the Veteran’s weight gain and sleep apnea. Therefore, the Board finds that entitlement to sleep apnea as secondary to weight gain due to service-connected psychiatric disabilities is warranted. REASONS FOR REMAND The Veteran’s treatment records indicate he had a history of erectile dysfunction. Moreover, a November 2011 record reveals the Veteran was treated for such. The Veteran has not been afforded a VA examination in connection with his claim. Therefore, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any erectile dysfunction. A medical opinion should be provided. Review of the Veteran’s treatment records reveal a history of warts as residuals of a sexually transmitted disease. However, the Veteran has not been afforded a VA examination in connection with this claim. On remand, the Veteran should be scheduled for VA examination and a medical opinion should be rendered. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for erectile dysfunction and warts. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims files. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any erectile dysfunction. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should also opine as to whether it is at least as likely as not that the Veteran has erectile dysfunction that manifested in service or is otherwise causally or etiologically related to it, including any symptomatology therein. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any residuals of a sexually transmitted disease, including warts. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should also opine as to whether it is at least as likely as not that the Veteran has residuals of a sexually transmitted disease, including warts, that manifested in service or is otherwise causally or etiologically related to it, including any symptomatology therein. 4. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel